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Whenever the Supreme Court of Canada issues a ruling related to Family law, we at Gelman & Associates will summarize it here in our blog.  This fall the country’s highest court issued a ruling clarifying its position on retroactive child support when the child is no longer a minor.

Retroactive child support

When someone has a child support obligation and falls behind on it, they may find themselves responsible to pay retroactive child support payments. These payments are intended to make whole the party who was supposed to receive child support payments, with the ultimate benefactor being the child. This can happen either when someone fails to make child support payments, but can also apply to people who aren’t honest about their income, and therefore should have been paying more all along.

Father was underpaying child support

The parents involved in the dispute were in a common law relationship when they had a child in 1991. They separated in 1994. Upon their separation, the father agreed to pay child support based on his annual income. A consent order was put in place in 2004 and reflected the same support arrangement.

What was not known to the mother at the time was that the father had understated his income when they separated. This was for all years except one (2004) between 2001 and 2012. Upon learning of the father’s understated income, the mother applied under British Columbia’s Family Law Act to retroactively vary the child support that the father should have been paying.

At the initial trial, the mother’s application was allowed and the father was ordered to pay $23,000 in retroactive child support. However, when the decision was appealed, the Supreme Court of British Columbia overturned that decision. The reason for the appeal being allowed was because the Supreme Court of British Columbia relied on a 2006 decision from the Supreme Court of Canada in which the country’s highest court stated a retroactive child support order under the federal Divorce Act had to be made while the child remained a “child of the marriage.” The Supreme Court of British Columbia took that logic and applied it to the provincial laws as well.

Not all laws have the same language, though

In hearing the appeal, the Supreme Court of Canada said that each province must analyze the statutory scheme in which the application was brought. Since the federal Divorce Act and British Columbia’s Family Law Act have different language, it doesn’t make sense to apply the same reasoning to each law’s interpretation. Unlike the federal Divorce Act, the FLA in British Columbia explicitly states that courts can change, suspend or terminate an order concerning child support, and can do so retroactively. As a result, the Supreme Court of Canada reinstated the trial judge’s order for the father to make up the $23,000 that should have been paid to the mother and child in the first place.

We will be sure to report to our readers on how this decision is interpreted in Ontario.

If you have questions about your separation or divorce, contact Gelman & Associates. Our lawyers – who are knowledgeable and compassionate, but also tough when necessary – provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (416) 736-0200 or 1-844-736-0200, or contact us online for an initial consultation.

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